Australia should be wary of “legally inflicted injustice" in areas such as national security, border protection and law and order, former Federal Court judge
Ronald Sackville
, QC, told an audience at the University of NSW.

Mr Sackville was invited to discuss the topic “Law and justice – do they meet?" He began by detailing how difficult it was to define both terms and ended by acknowledging the answer was that they do and do not meet.

“Law can be a powerful instrument of injustice, particularly in its impact on poor and vulnerable groups in the community," he said. “Yet law can also be a powerful force for the elimination or amelioration of injustice, especially through carefully designed legislative reforms supported by adequate mechanisms for their implementation."

Although injustice was often widely recognised by society – as in the extra­ordinarily high rates of imprisonment of young Aboriginal men and the ban on same-sex marriage – it could be ­difficult to determine what, if anything, governments should do to remedy it, Mr Sackville said last week at UNSW, where he is a visiting professorial fellow, along with serving as an acting ­justice of the NSW Court of Appeal.

“It is also self-evident that democracy does not produce a kind of legislative social Darwinism whereby laws progress inevitably from a state of primitive unfairness ever closer to an advanced state of perfect justice," he said. “There are pressures, whether in the name of national security, border protection, law and order or other catchphrases of the moment, tending towards the introduction of new laws capable of inflicting serious injustice.

“New laws are as capable of creating injustice as the old. The elimination of legally inflicted injustice is always a work in progress."

Mr Sackville spoke of having grown up in a “moderately observant Jewish household in Melbourne" and of living in the days of the White Australia Policy. His personal experiences “illustrate just how profoundly this country has changed over the nearly five decades of my professional life".

“Australia, like England, has a long history of mostly genteel anti-Semitism," he said. “I experienced sufficient anti-Semitism to understand how corrosive and dangerous prejudice can be, however genteel its expression."

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Mr Sackville explored the notion that a community’s ability to recognise injustice often depended on personal experience.

“We are invariably quick to recognise injustice when it is inflicted on us or on those with whom we associate or strongly sympathise," he said.

“We tend to be slower to recognise injustice that affects others, even to the point where we ourselves sometimes unwittingly become, if not the ­perpetrators, complicit in the infliction of injustice."

A lack of societal consensus on difficult issues was demonstrated by ­“Australia’s confused and sometimes inhumane responses (by both major political parties) to the much overblown threat posed by so-called ‘boat people’," he said.

“As the attention span of the community diminishes in inverse proportion to its technological sophistication and as the political process focuses ever more on the here and now, institutions that can stimulate the community’s sense of injustice are critical to the wellbeing of this society."